There are times when an estate is relatively simple and the more traditional formal method of probate to administer an estate is not necessary. For example, if the only reason for probating a Will is to clear title to property, then a Will can be admitted to probate as a muniment of title. Under this type of probate an executor or executrix is not appointed.
In this article, we will discuss muniment of title probate in Texas. Austin probate lawyer Farren Sheehan can help answer questions and assist families with muniment of title probate as well as traditional probate proceedings in the Austin area.
When Muniment of Title Probate is Used
When a person dies leaving a Will, the family has a choice of procedures under Texas law as to how to probate the Will. Muniment of title probate, a simpler type of probate than the more traditional formal probate of a Will, may be an option.
When a Will is probated as a Muniment of Title, no executor or executrix is appointed to administer the estate. Since no personal representative is appointed, however, no person has legal authority to act on behalf of the estate.
This type of probate is generally only used when there are no debts of the estate needing to be paid and there are no actions that would require the appointment of an executor or executrix. Muniment of title probate is a simpler way to establish the validity of the Will and pass title to the beneficiaries named in the Will.
Generally, a muniment of title should be considered when the estate has no unsecured debts and the only assets involved are real property and cash accounts. A muniment is usually not advisable when the estate includes publicly traded securities, bonds, and similar assets, because transfer of these types of assets often requires an executor or executrix with authority pursuant to Letters Testamentary.
Also, a Will can only be admitted as a muniment of title in probate if it has been more than four years since the death of the decedent.
Procedure for Muniment of Title Probate
As in the traditional probate process, an interested party must file an application (along with the Will) in a court with jurisdiction over probate matters. In Austin and Pflugerville, for example, the application should be filed in the Travis County Probate Court. An application for the probate of a Will as a muniment of title must state the following to the extent each is known to the applicant or can, with reasonable diligence, be ascertained by the applicant:
- Each applicant’s name and domicile
- The testator’s name, domicile, and, if known, age on the date of the their death
- The fact, time, and place of the testator’s death
- Facts showing that the court with which the application is filed has venue
- Facts showing that the testator owned property, including a statement generally describing the property and the property’s probable value
- The date of the Will
- The name and residence of:
- any executor named in the Will, and
- each subscribing witness to the Will, if any
- Whether one or more children born to or adopted by the testator after the testator executed the Will survived the testator and, if so, the name of each of those children
- That the testator’s estate does not owe an unpaid debt, other than any debt secured by a lien on real estate
- Whether a marriage of the testator was ever dissolved after the Will was made and, if so, when and from whom
- Whether the state, a governmental agency of the state, or a charitable organization is named in the Will as a devisee.
The court will then have a hearing on the validity of the Will. A court may admit a Will to probate as a muniment of title if the court is satisfied that the Will should be admitted to probate, and that the court: (1) is satisfied that the testator’s estate does not owe an unpaid debt, other than any debt secured by a lien on real estate; or (2) finds for another reason that there is no necessity for administration of the estate.
No executor or executrix is appointed. Instead, the Will itself shows who owns the assets of the estate. The court’s order admitting the Will to probate as a muniment of title validly passes title.
How a Probate Attorney Can Help
Someone named as an executor or executrix of a Will, or someone otherwise considering probating a Will, should hire a probate attorney to review the Will and the estate of the testator. The probate attorney can review the options available under Texas law and advise her client as to the best practice in their individual case. There may be times that it would be appropriate to apply for admission of a Will as a muniment of title when all the debts are paid, but the better practice might be to proceed in naming an independent executor who can act on behalf of the estate if the Will names an independent executor.
Sheehan Law, PLLC | Austin, TX Probate Attorneys
Attorney Farren Sheehan in Pflugerville is an experienced probate lawyer who can determine how to best probate a Will, provide options for administering the estate, assist with court proceedings in probate court, and help you with any questions you have regarding probating a Will in Travis county or the Austin area. To schedule a consultation, call (512) 251-4553 or fill out our online contact form.